WASHINGTON -- The state of Alaska got a rough reception from federal appeals court judges Friday in a case over state sovereignty and the ability of the federal government to take land into trust for Native communities.
The state wants the D.C. Circuit Court of Appeals to overturn a lower-court ruling and declare that because of the 1971 Alaska Native Claims Settlement Act, the federal government has no authority to create new sections of "Indian country" in Alaska.
But the Native American Rights Fund and several tribes it represents want the right to petition the federal government to put their land into trust.
"It's hugely important for Alaskans, especially in rural villages across the state," said the Native groups' attorney Heather Kendall Miller, speaking after the hearing in Washington. "Most villages don't have effective law enforcement."
If they could put their land into trust, Miller said, they could invoke federal authority over regulating alcohol and get federal help prosecuting bootleggers, for instance.
Miller said in many villages, people feel they could get better protection from federal officials -- such as the U.S. Fish and Wildlife Service -- than from the Alaska State Troopers. There is "a real vacuum with respect to the state's presence in providing essential services," Miller said.
The state, meanwhile, worries about losing authority over all sorts of regulatory and law-and-order matters if land is taken into trust. And given the hundreds of tribes in Alaska, that could result in a patchwork of authority across the state.
It will be months before the appeals court rules in the case, but on Friday members of a three-judge panel repeatedly suggested the state might not have the legal standing for its effort to overturn the lower court's decision.
For decades, Alaska Native tribes were generally considered exempt from regulations that allow the federal government to take land into trust, a process that provides more local and federal control but excludes state taxation and other authorities. Then in 2013, a federal district court struck down the "Alaska exemption" after a lawsuit brought by four tribes in 2006.
Instead of fighting the ruling, the Interior Department issued a new regulation in 2014 that does not exempt Alaska tribes. Now Alaska Natives can petition to put their lands into trust, just like tribes in the Lower 48.
But the regulation is on hold until the appeals court rules. Though the federal government decided to accept the decision, the state of Alaska continued its legal battle.
During oral arguments Friday, judges seemed skeptical the state even had a right to continue the suit, challenging a regulation that no longer exists.
Anne Nelson, assistant attorney general for Alaska, argued that rather than the regulation, the state is challenging the lower court's ruling -- and reading of the law.
But the judges were quick to pile on as soon as she began speaking, questioning why the state would have standing.
"I get that you don't like the 2014" regulation, said Judge Patricia A. Millett. But "it seems to me, that's where your beef" is -- not with the original regulation that launched the case now at appeals court, she said.
"I just don't understand what relief we could offer on this case," Judge David S. Tatel said.
The judges suggested the state may have to wait for the Interior Department to actually take land into trust, and then sue over that. But even there, the state would have to show "harm" -- a potentially difficult task when the state isn't likely to lose anything concrete, like tax money.
"Until the secretary invokes it again under a new regulation, what's the problem?" Tatel asked.
Justice Department attorney Elizabeth Ann Peterson argued the question of harm to the state couldn't be considered by the court unless and until the Interior Department takes land into trust, and even then it would be a "parcel by parcel" question.
But Nelson argued the legal question at hand -- whether the deal the state and Natives made with the federal government in 1971 bars putting land into trust -- "is still very much alive."
But "you could have injury, but a case could still be moot, right?" Tatel asked. Nelson sighed audibly and answered "yes."
Miller, the Native groups' attorney, said after the hearing the state mainly stands to lose regulatory jurisdiction, but "that's something that could also easily be negotiated through the land-into-trust process itself."
If the court rules against the state, it may still be years before lands are taken into trust, given the lengthy petition process, not to mention the unknowns of the next administration.
Nevertheless, many tribes are watching the case closely, Miller said.
"I think there are many tribes that are interested in finding out whether that's the right tool for them," she added. "… I think that's why this case has garnered as much attention as it has, because it really comes down to local control over village communities and what tools do they have to be able to protect the health and welfare of their community members."
Alaska Dispatch Publishing